Wine Lovers Without Representation: The Future of Massachusetts Wine Shipping

I have the great pleasure of knowing a fine (future) lawyer studying at Cornell Law, Byron Crowe, who is the founder and president of that school's Society for Wine and Jurisprudence.  He was gracious enough to invite me to write a little piece for SWJ's new blog.  The article, "Wine Lovers Without Representation: The Future of Massachusetts Wine Shipping," has just been posted on-line.  Go ahead and check it out.  I don't usually write "humorous" articles, at least since my stint as Opinion Editor at the University of San Diego Vista.  But I thought I'd try my hand at a little levity.  I even decided (finally) on a drinking motto: Vinum merum rubrum et Hiberniæ aqua vitæ

With Byron's prior permission, I'm reposting the article here.  A big thanks to him and his fellow officers and web editors for tech checking what I sent them, which was mostly just links to news articles.  They even added real citations!

Be warned that the version that follows is my original article.  Unlike the one at SWJ (linked above), this "uncensored," "unedited," and "uncut."  Not that this means anything terribly serious.  My political opinions just shine forth a little more brightly.  And I'm my usual verbose self.

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I’m a law student and — knock on wood — a future lawyer.  Along with the bench and bar, we try to claim a monopoly on legal expertise.  But you don’t need to go to law school for three miserable, grueling years to know that it’s wrong to ignore the ruling of a federal appellate court.  Even the average Joe knows that once he’s had his day, the show is over.  It’s time to abide and to stifle.  Once you’ve lost your case, you change, you reform, and you conform to the law.  Governor Deval Patrick and the legislators up Beacon Hill must lack this commonsense, as they continue to abridge the rights of Massachusetts wine enthusiasts and their suppliers outright.

Let me fill you in with a little background.  The Commonwealth is known for its proclivity to tax and spend and regulate.  Nowhere else in the Union has there been as remarkable, if not paradoxical, a fusion of liberal progressivism and puritanical culture.  In Massachusetts, you can only buy beer, wine, or booze in a designated liquor store, and it has to be carried out in a package or box.  Alcohol can never be discounted — ergo, no happy hour — and don’t even think about ordering a round of drinks for your friends after that Red Sox victory…because state law limits bar purchases to two drinks per person at a single time.  Oh, yeah…forget bottle service, too.  Suffice it to say, the list does go on.

Associate Justice Kennedy

Back in 2005, the Supreme Court of the United States struck a major blow for oenophiles and vintners in Granhold v. Heald.  Finally, the repressed and thirsty drinkers of the United States — Massachusetts included — had reason to celebrate.  Considering a challenge to New York and Michigan’s restrictions on the importation of out-of-state wines, the Court ruled that regulatory regimes privileging in-state producers were violative of the Commerce Clause.  While the Court recognized the legitimate interest of the states in regulating alcohol under the Twenty-First Amendment, it nonetheless recognized a limit to this power.  The Court was explicit in ruling that states cannot ban or severely limit the direct shipment of wine across state borders while exempting domestic producers from similar restrictions.  Apparently, Justice Kennedy takes the dormant Commerce Clause seriously.

Unfortunately, the Court’s holding only immediately affected regulations restricting the importation of wine in New York and Michigan.  It wasn’t until 2010, in Family Winemakers of California III v. Jenkins, that the First Circuit Court of Appeals ruled that Massachusetts’s own law against the importation of out-of-state wines was similarly unconstitutional.  Martha Coakley, the Commonwealth’s Attorney General, was wise enough to abide by the First Circuit’s ruling, rather than appeal.  And Beacon Hill quickly followed with Senator Robert O’Leary and Representative David Torrisi introducing legislation to bring the General Laws into conformity with the court’s decision.

AG Martha Coakley

That was all three years ago.  Nothing has yet been passed through the state legislature or reached Governor Patrick’s desk that makes any change to the law as it stood in 2006.  And while Massachusetts is hardly alone — 12 other states are still noncompliant with the Supreme Court’s decision in Heald — the Commonwealth’s failure to conform its statutes to protect the recognized rights of drinkers and producers is especially bothersome.  As a recent article reports, all this legislative foot-dragging is confusing.  While the package story lobby and its protectionist allies have held some sway in preventing the necessary reform, the State is loosing precious revenue from licensing fees and excise taxes that could help alleviate the increasing pressure of its worrisome budgetary deficit.

A strong effort is being made to organize concerned citizens to request that their representatives take action to bring Massachusetts into compliance with the law and with the demands of the U.S. Constitution.  FreeTheGrapes.org, a national wine consumer advocacy website, has provided an easy, on-line interface to accomplish just such communication.  I encourage readers from the Commonwealth, or other noncompliant states, to get involved and make their voices heard with élan.  Our rights as wine enthusiasts are at stake.

Wine may be a mere beverage, but it is a great luxury — perhaps even a quotidian necessity — for a great many of us.  It holds pride of place in our gastronomical history and culinary culture.  And it is our recognized constitutional right to purchase it, regardless of where it has been produced.  Shame on Massachusetts for depriving her citizens of the right to enjoy — as Renaissance poet Francis Beaumont might say — the crimson liquor of Bacchus!  Let the Charles River run red (and white) with wine!